1. Richard Henry Ellis (“the applicant”) was sentenced to life imprisonment on 11 June 2002 at the Central Criminal Court after he had been convicted of the murder of Fetah Marku who was an Albanian. He now applies under the provisions of the Criminal Justice Act 2003 (“the 2003 Act”) for the Court to fix the minimum period which he must serve before he can be considered for parole.
2. The facts which give rise to this offence were that the victim and three fellow Albanians visited the Oscar Wilde public house in Edgware on the night of 23to 24 March 2001. One of the friends of the victim (Emir Cakaj) danced with Natasha Hewitt for about 2 hours and they frequently kissed each other.
3. The applicant worked at this public house as a music promoter and was present on the night although he was not working. According to the prosecution case, the applicant was part of a group who stared at the dancing couple while Natasha Hewitt was the worse for drink.
4. Later on that night outside the public house, Natasha Hewitt was crying because she had mislaid her handbag and she was comforted by Cajak. The applicant, intervened and swore at Cajak and physically assaulted him. Cajak fought back and there was a dispute as to who started the violence but the two were separated by the other three Albanians. It is possible that the applicant may have suffered an injury at this stage.
5. Then a large number of people estimated between 10 and 30 emerged from the public house and chased all four Albanians with three of them getting into a car park further along the road. When they were there, Fetah Maku was attacked by punches, kicks and blows with sticks by at least one person armed with a knife. In consequence he suffered some 80 injuries of which 29 were inflicted by a sharp instrument or instruments. His death was caused by the stabbing.
6. The case against the applicant which was accepted by the jury was that he was one of the attacking group and that he had participated in the attack generally when he was aware that a knife or knives were being used by a man who intended to do really serious injury or to kill. It was not the case for the prosecution nor was there any evidence to suggest that the applicant was the person who had actually used the knife to murder the victim.
7. The trial Judge (His Honour Judge Coombe) recommended a term of 11 years his reasons were:“My view of the minimum sentence that the defendant should serve is 11 years He was a secondary party to the murder. On the other hand, his actions were the beginnings of the trouble. His motives may have been some form of jealousy (although the girl Hewitt was not his girlfriend) and anger that he came off the worst in the initial fight. But there was evidence to support the fact that this killing was racially aggravated. The defendant was a black Englishman, the victim and his friends were Albanian. In his police interviews, the defendant demonstrated his hostility to Albanians (although he denied the implications of this in the witness box)”.
8. Lord Wollf CJ commented “I agree a minimum period of 11 years”.
9. Submissions have been made on behalf of the applicant who has not requested an oral hearing. No victim impact statement has been obtained from the family of the victim although attempts have been made to obtain one.
10. The submissions on behalf of the applicant are that:
(a) this was not a premeditated attack but an attack initiated as a result of an initial skirmish involving the applicant and the four Albanians;
(b) he did not have the knife and was a secondary party to the murder;
(c) the intention of the applicant was at most to cause a serious injury rather than an intention to kill; and
(d) a minimum period of not more than 9 years would be appropriate.
11. Under the 2003 Act, the starting point would be 15 years against which there would have to be a reduction for the mitigating factors which are correctly identified in paragraph10 (a) to (c) above. In my view, it is also necessary to regard as aggravating factors the findings of the trial judge first he started the violence which led to the stabbing as the trial judge explained and second that “there was evidence to support the fact that this killing was racially motivated” although this must be considered in the light of the fact there was not an intention to kill and that the applicant was a secondary party to the killing.
12. In all the circumstances, I have concluded that the appropriate minimum period for the applicant to serve under the 2003 Act before he would be considered for parole would be 12 years. In order not to breach the principle of non retroactivity, I have to ensure that the minimum term under the 2003 Act does not exceed the term that the Secretary of State would have imposed under the practice followed by him for murder committed when this murder was committed.
13. In this case the murder was committed in March 2001 and the practice adopted by the Secretary of State is stated in Lord Bingham CJ’s letter of 10 February 1997 which fixes the starting point at 14 years for the “average”, “normal” or unexceptional” murder. In the light of the aggravating and mitigating factors to which I have referred, I would be obliged to reduce that minimum period from 14 years especially in the light of the fact that the applicant was a secondary party. That would reduce the period to 11 years.
14. As I have explained, in order not to breach the principle of non retroactivity, I have to ensure that the minimum term under the 2003 Act does not exceed the term that the Secretary of State would have imposed under the practice followed by him for murder committed when this murder was committed, which means that the minimum period is 11 years less the period spent on remand before sentence. That means that the period to be served by the applicant before he can be considered for parole is 10 years 4 months and 20 days which is calculated as being the minimum term of 11 years less 7 months 10 days spent on remand before sentence.
03/01, Fetah Marku, 24, Edgware, London
This Kosovan asylum seeker was beaten to death by a gang of men following an argument in a pub in Edgware, north London. Fetah suffered eighty injuries, twenty-nine of which were from sharp instruments. In June 2002, Richard Ellis, a Black man, was found guilty of his murder. The judge commented it was unlikely he was 'solely responsible'. Ellis denied knowing any of the 20-30 strong gang that beat Fetah to death. In April 2007, Ellis was told that he must serve at least 11 years for the racially motivated attack before he could seek parole.
Police have appealed for help to find a number of men who beat and stabbed an asylum seeker to death in a "vicious" assault following an argument outside a pub.
Fetah Marku, a Kosovo Albanian, was chased and killed by the group in Edgware, north London, last year, as he celebrated his 24th birthday.Mr Marku's body was found to have 80 separate injuries, including 29 stab wounds, when he died. The cause of death was found to be massive internal bleeding.
One man, Richard Ellis, 33, of Watford Road in Harrow, was jailed for life for his murder last week.
But police say there were "a number of others" involved in the attack, who have not been caught.
Mr Marku's 18-year-old brother Isa told a news conference Fetah had been a "very friendly" person who did not deserve such an attack.
Speaking through an interpreter, Isa said: "He would talk to people, he was a very hard-working person, always smiling. He liked to be in the company of others - he was very friendly."
The news conference came during Refugee Week, in which the UK press has been criticised for stirring up suspicion and ill-feeling against asylum seekers.
Mr Marku and Isa came to the UK seeking political asylum in September 2000.